News You Can Use: Tenth Circuit Rules It’s Plain Error to Fail to Group Bank Robbery and Felon in Possession Convictions under USSG §§ 3D1.1-1.5.

In United States v. Rafal, No. 17-4107, 2018 WL 4275865 (10th Cir. Sept. 7, 2018), the Tenth Circuit, on plain error, vacated a sentence where the district court failed to group bank robbery and felon in possession of a firearm convictions under U.S.S.G. §§ 3D1.1-1.5, the Guidelines for determining a single offense level that encompasses all the counts of conviction.

Facts:  Mr. Rafal robbed a bank and had a gun with him when he was arrested minutes later.  He pleaded guilty to one count of bank robbery and one count of being a felon in possession of a firearm.  The PSR did not group his two counts of conviction under U.S.S.G. §§ 3D1.1-1.5.

Instead, in calculating the offense level for the bank robbery, the probation officer applied a base level offense of 20 and then added five more levels because “a firearm was brandished or possessed” during the robbery.  See U.S.S.G. §2B3.1(a) and 2B3.1(b)(2)(C) respectively.

Then, in calculating a total, combined offense level for the two counts, the probation officer erroneously added 1 level for the felon in possession conviction as a “multiple-count adjustment,” pursuant to U.S.S.G. § 3D1.4.  Defense counsel didn’t object, and the district court judge didn’t catch the error either.  When sentencing Mr. Rafal, the district court adopted the probation department’s miscalculation.  The circuit vacated Mr. Rafal’s sentence and remanded his case for resentencing.

Issue:  Was it plain error to fail to group bank robbery and felon in possession convictions under U.S.S.G. §§ 3D1.1-1.5? 

Holding:  Yes, said the Tenth Circuit, “because the felon-in-possession-of-a-firearm count embodies conduct that was treated as a specific offense characteristic of the bank-robbery count.” Op. at 6. 

Takeaways:  This case is unpublished, but it serves as a good reminder: read the Guidelines! No one — not the probation officer, not defense counsel, and not the district court — noticed a plain Guidelines error that was clear and obvious based on the text of the Guidelines alone.  Application note 5 of § 3D1.2 specifically states “use of a firearm in a bank robbery and unlawful possession of that firearm are sufficiently related to warrant grouping of counts under this subsection.” 


News You Can Use: Tenth Circuit issues first published decision on USSG § 2D1.1(b)(12) — the enhancement for maintaining a premises for drug distribution

In United States v. Murphy, No. 17-5118 (10th Cir. Aug. 24, 2018) the Tenth Circuit issued its first-ever published opinion on U.S.S.G. § 2D1.1(b)(12), the guideline adjustment for maintaining a premises for purposes of drug distribution.  Although the circuit affirmed the application of the adjustment, it made some useful law on how the adjustment applies when the premises at issue is the defendant’s own residence.  

Section 2D1.1(b)(12) provides for a two-level increase if “the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.”   The commentary adds that while drug activity need not be the “sole purpose” of the premises, it must be a one of the “primary or principal uses” of the premises and not an “incidental or collateral” use.  § 2D1.1 cmt. n.17. 

In many cases, like this one, the premises at issue is the defendant’s own home.  And that situation raises the question of what it means for drug activity to be a “primary” use of a premises that is constantly used for legitimate activities too?  Mr. Murphy argued that drug activity must be “pervasive and persistent” to qualify for the adjustment.  Op. at 8.  The court rejected that test but ultimately adopted a very similar one: drug activity “must not only be frequent but also substantial.”  Op. at 10.

The court also set out a number of factors to consider: “(1) the frequency and number of drugs sales occurring at the home; (2) the quantities of drugs bought, sold, manufactured, or stored in the home; (3) whether drug proceeds, employees, customers, and tools of the drug trade (firearms, digital scales, laboratory equipment, and packaging materials) are present in the home, and (4) the significance of the premises to the drug venture.”

Takeaway: Mr. Murphy lost under this test because the evidence suggested that he had used his home to sell drugs for a long time.  But in general, this test should be hard to meet, and in most cases you can challenge the enhancement.


News You Can Use: 10th Circuit Says Garnishment Allowed When Restitution Is “Due Immediately” – United States v. Williams

Check out United States v. Williams, where the Tenth Circuit recently held that a restitution order specifying that restitution is “due immediately” creates an immediately enforceable obligation to pay the full restitution amount, even though the Schedule of Payments also provides for smaller, periodic payments.

Background: The Internal Revenue Service investigated defendant Ricky Williams for tax fraud. The investigation resulted in USAA Savings Bank freezing an account in defendant’s name, which contained funds related to the fraud. Mr. Williams pleaded guilty to one count of tax fraud and was ordered to pay $240,361 in restitution to the IRS, with a $100 special assessment, for a total liability of $240,461. 

The Mandatory Victims Restitution Act (MVRA) provides that “[a] restitution order may direct the defendant to make a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.”  18 U.S.C. § 3664(f)(3)(A).  Here, the Schedule of Payments required restitution as follows:

A. Lump sum payment of $240,461.00 ($240,361.00/restitution; $100.00/special assessment) due immediately, balance due . . . in accordance with . . . F below . . . .

F. Special instructions regarding the payment of criminal monetary penalties:

If restitution is not paid immediately, the defendant shall make payments of 10% of the defendant’s quarterly earnings during the term of imprisonment; and If restitution is not paid in full at the time of release from confinement, the defendant shall make payments the greater of $100.00 per month or not less than 10% of the defendant’s gross monthly income, as directed by the probation officer . . . .

Slip op. at 3.

A few months after Mr. Williams was sentenced, while he was in prison, the government applied for a post-judgment writ of garnishment against one of his bank accounts, in order to collect the restitution owed.  The district court held that the entire amount was immediately due, per Section A of the Schedule of Payments, and that Section F served as a back-up schedule for the payment of whatever amounts were not paid under Provision A.  After the trial court granted the application for a writ of garnishment, Mr. Williams appealed, representing himself pro se.

Issue: Was the government permitted to immediately collect the full restitution amount (as provided in section A), or was it limited to 10% of Mr. Williams’ quarterly earnings during his term of imprisonment (as provided in section F)?

Holding: In an opinion by Judge McKay, joined by Judges Phillips and O’Brien, the Tenth Circuit affirmed.  Its decision was driven by the doctrine requiring “deference to the district court’s interpretation of its own order,” so long as it is reasonable.  Slip op. at 5 (quoting Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 863, 872 (10th Cir. 2018)).  Concluding that the district court’s “interpretation of its own prior [restitution] order in this case [was] reasonable,” the Tenth Circuit held that the full amount of restitution was due immediately.


  • Remember that the MVRA allows restitution to be paid in a lump-sum amount, according to a specified schedule, through in-kind payments, or a combination of scheduled and in-kind payments.  See 18 U.S.C. § 3664(f)(3)(A).  If restitution is on the table, consider whether you want to advance arguments about the appropriate manner of payment.
  • If the Schedule of Payments says that X amount of restitution is “due immediately,” then your client may be on the hook for that entire amount as soon as he is sentenced—even if the Schedule of Payments also seems to provide for smaller, periodic payments.
  • To avoid any confusion, make sure that you, the government, and the judge are all on the same page with what restitution is due when.  If the order is ambiguous, the judge’s interpretation (if reasonable) will probably control.



Resource: PEW Releases Study on the Changing State of Recidivism

The share of people returning to state prison three years after being released—the most common measure of recidivism—dropped by nearly a quarter over a recent seven-year period, according to an analysis by The Pew Charitable Trusts of federal Bureau of Justice Statistics (BJS) data on prisoners released in 2005 and 2012. 


Pew undertook this research to compile and make public the most current multistate data on recidivism trends. Determining causal relationships to explain the drop in recidivism rates was outside the scope of this analysis.

The Pew study is available here. The methodology used by Pew involved review of an administrative data set maintained by the National Corrections Reporting Program (NCRP).  NCRP compiles offender-level data on admissions and releases from state and federal prisons and post-confinement community supervision. The data are used to monitor the nation’s correctional population and address specific policy questions related to recidivism, prisoner reentry, and trends in demographic characteristics of the incarcerated and community supervision populations. BJS has administered the NCRP since 1983. 


ATTENTION CJA LAWYERS: Do Any Tenth Circuit Criminal Pattern Jury Instructions Need to be Revised?

The Tenth Circuit Criminal Pattern Jury Instructions are now being reviewed and revised for the next edition, forthcoming in 2019.

The Committee wants to hear from Federal Defenders and lawyers on the CJA Panel: which pattern instructions might need revision?

Please email your suggestions and comments with the subject line “Proposed Pattern Instruction Revision” to  AFPD Veronica Rossman by October 31, 2018.

News You Can Use: NACDL Releases “Trial Penalty” Report

After two years of research and study, the National Association of Criminal Defense Lawyers (NACDL) has released an important new report– The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It.

The “trial penalty” refers to the significant delta between the sentence offered prior to trial versus the sentence a defendant receives after trial. There are some staggering, but not surprising, statistics in this Report: “in recent years fewer than 3% of federal criminal defendants chose to take advantage of one of the most crucial constitutional rights.” The Report identifies and exposes the underlying causes of the decline of the federal criminal trial. 

Here’s an excerpt:

“Criminal defense lawyers have long known that trials are vanishing. This is an unacceptable development, and not just because the art of trying a case is atrophying. The virtual elimination of the option of taking a case to trial has so thoroughly tipped the scales of justice against the accused that the danger of government overreach is ever-present. And on a human level, for the defense attorney there is no more heartwrenching task that explaining to client who very likely may be innocent that they must seriously consider pleading guilty or risk the utter devastation of the remainder of their life with incalculable impacts on family. This Report documents the corrosive effect of the trial penalty on the system of criminal justice. It examines the relationship between the trial penalty and numerous characteristics of modern criminal justice including virtually unfettered prosecutorial charging discretion, mandatory minimum sentencing statutes, and the federal Sentencing Guidelines. The Report highlights specific cases to demonstrate that individuals are being punished simply for holding the government to its burden of proof and, in some cases, that the trial penalty has coerced innocent individuals, later exonerated, to plead guilty for fear of devastating long posttrial sentences.”

Check out the whole thing here: NACDL Trial Penalty Report FINAL


Practice Tip: How to Tackle Implicit Bias in the Courtroom

If you think implicit bias in the courtroom may be at issue in your next federal trial, consider filing a motion, asking the court for permission to do the following:

(1) Use a case-specific juror questionnaire that includes questions geared towards uncovering racial prejudice and implicit bias;

(2) Play this Western District of Washington juror orientation video on implicit bias to potential jurors;

(3) Give a preliminary instruction to potential jurors about implicit bias (also based on the W.D. Wash. materials); and

(4) Permit 30 minutes of attorney-led voir dire, including questions based on the What Would You Do?

To learn more, check out these law review articles on implicit bias in the courts. 

Unraveling Knot of Implicit Bias in Jury Selection (implicit bias)

Implicit Bias in the Courtroom (implicit bias)

215 Motion for case-specific jury questionnaire (implicit bias)